Law Office of Joseph L. Rockne, PLLChttp://rocknelaw.com
Thu, 30 Jul 2015 22:23:32 +0000en-UShourly1Possession must be open and notorioushttp://rocknelaw.com/possession-must-open-notorious/
http://rocknelaw.com/possession-must-open-notorious/#commentsSun, 23 Feb 2014 17:38:54 +0000http://rocknelaw.com/?p=637In Seattle, many older properties have rockeries, small fences and even garden walls. In established areas, these features are often overgrown with all sorts of plants—often invited and cultivated—sometimes wild and unwanted.

When a boundary dispute between neighbors erupts, one or the other may point to these features to support a claim for adverse possession. Just because this hard feature exists, there are still hurdles the adverse possessor must overcome. Perhaps most importantly is establishing that the feature was “open and notorious.”

The “open and notorious” element is satisfied where the use of property is such that “any reasonable person would assume” the claimant was the owner. The element requires that the possession be visible and known or discoverable to the true owner.

Possession is not “open and notorious” if it is “hidden from being observed”

Washington’s voluminous case law on adverse possession does not contain a case that definitively addresses an adverse possession claim based on an obscured structure. There are two cases from Oregon that are instructive.

In Olson v Williams, 514 P.2d 552(1973) the court rejected a claim based on ornamental trees that had blended into the surrounding landscape making any distinct boundary not discernible.

A fence, constructed in heavy vegetation that could only be located if someone worked “…his way through the brush” to find it, was too hidden to support an adverse possession claim in Reeves v Porta, 144 P.2d 493(1944).

Evidence that a claimant or predecessor had placed a structure or landscaped a neighbor’s property is not, therefore, dispositive. One must look at the nature of improvement from the point of view of the owner faced with the loss of property.

The owner faced with the loss of property might ask: Was the use of property a type that would put that owner on notice that his or her property was being used by another?

]]>http://rocknelaw.com/possession-must-open-notorious/feed/0Pending gun rights caseshttp://rocknelaw.com/pending-gun-rights-cases/
http://rocknelaw.com/pending-gun-rights-cases/#commentsFri, 07 Feb 2014 22:27:31 +0000http://rocknelaw.com/?p=626Although some might argue it is a bit of a stretch for a property lawyer to write on gun rights issues, I had the unfortunate opportunity early in my career to help a family victimized in a drive-by shooting. Also, I must be aware of the possibility that property owners may have guns in their possession and in their homes whenever I visit a disputed boundary line.

Finally, most law students and lawyers have an interest in Constitutional Law. Given the dearth of judicial opinions interpreting the Second Amendment for most of the time of our republic, Second Amendment cases always seem to answer broad questions. The two pending cases certainly will.

In the recent decision in District of Columbia v. Heller the Court found that the Second Amendment protects a personal right to have a gun, at least for self defense purposes, inside one’s own home. It left open the question of whether the right extends beyond the home.

The petitioner in NRA v. Bureau of Alcohol, Tobacco and Firearms is seeking to have the Court extend Heller’s expression of the Second Amendment right beyond the home.

Because the underlying law at issue involves a restriction against minors possessing handguns, the Court could limit its holding to only minors. However, in doing so, the Court could open the door to more restrictions involving minors owning, possessing and using firearms.

Does the Second Amendment only protect a person’s right to possess a firearm inside one’s home?

Does the Second Amendment protect a minor’s right to own, possess or use firearms?

Certainly exciting and important issues are to be decided this term.

The two cases pending before the court stem from disputes about the constitutionality of laws restricting the rights of minors (those under the age of 21) from possessing handguns.

In BAC Home Loans Servicing v. Fulbright, the Court addressed Bank of America’s attempt to protect its security interest in a foreclosed condominium against the claims of a purchaser at a foreclosure sale.

In 2006, the Tanglewood at Klahanie condominium declaration was recorded. Jeanne Lewis purchased a unit in 2007 and secured the loan with a deed of trust. In 2008, Ms. Lewis failed to pay the condominium assessments.

The association started foreclosure proceedings in 2009. Bank of America was a named defendant. The Bank did not respond. A default was entered in June 2009 and a foreclosure decree issued.

Michael Fulbright purchased the condominium for a bit over $14,000 in May 2010. This amount covered the unpaid assessments. The sale was confirmed in June 2010.

Nearly a year later (but within the redemption period) the Bank alerted Mr. Fulbright that it intended to redeem the property by paying him the amount due, plus costs and accrued interest. Mr. Fulbright refused and the Bank sought an injunction to force the matter.

The Court rejected the Bank’s attempt at redemption. Relying on the language in RCW 64.34.364(1), the Court concluded that the association’s lien commenced when the assessment came due. The Bank’s argument that the lien dated from the date the declaration was recorded was expressly rejected.

The recording of the declaration gave the bank notice that a future assessment lien might arise. The Bank was provided with notice when the foreclosure proceedings commenced. “This was the bank’s opportunity to step in and pay off the delinquent assessments in order to avoid having its own lien eliminated. The bank missed this opportunity.”

Indeed, the bank did miss the opportunity… and Mr. Fulbright seized it!

]]>http://rocknelaw.com/condominium-super-priority-liens-are-super/feed/02013 Urban Forest Symposiumhttp://rocknelaw.com/2013-urban-forest-symposium/
http://rocknelaw.com/2013-urban-forest-symposium/#commentsMon, 08 Apr 2013 16:36:26 +0000http://rocknelaw.com/?p=482On May 13, 2013, Plant Amnesty and the University of Washington Botanic Gardens will be hosting a symposium on trees and views at the Center of Urban Horticulture.

The symposium will include several prominent guest speakers addressing the issues that arise when views and trees come into conflict.

Topics will include the methodology behind valuing trees and views, government view and tree protection policies and dealing with conflicts between them.

]]>http://rocknelaw.com/2013-urban-forest-symposium/feed/0Adverse possession and public propertyhttp://rocknelaw.com/adverse-possession-and-public-property/
http://rocknelaw.com/adverse-possession-and-public-property/#commentsTue, 12 Mar 2013 18:27:19 +0000http://rocknelaw.com/?p=436People acquire property—and lose property—by adverse possession when certain facts have been present for more than ten years. The facts center on the possessor’s use and occupation of the “true” owner’s property. The use may have been by a prior possessor.

I have addressed the elements in a previous post. The purpose of this post is to alert readers to a recent Washington Supreme Court case that addressed an adverse claim of public property.

The general rule is that public property cannot be acquired by adverse possession. RCW 4.16.160.

This question recently wound its way through the court system: what if a governmental entity acquires property that had previously been acquired by adverse possession? Can the governmental entity use the statutory defense to defeat someone’s adverse possession claim to the land?

The Supreme Court of Washington answered no.

Where a party has perfected an adverse possession claim prior to the governmental entity’s acquisition of the property, the cause of action as to ownership is not barred. Gorman v City of Woodinville, 175 Wn.2d 68, 283 P.3d (2012).

The rule follows from the reasoning that title acquired by adverse possession is inchoate title. It automatically vests in the possessor (and is passed to the possessor’s successors!) upon the passage of a ten year period of open, notorious, exclusive, hostile, actual and uninterrupted use. The possessor is not obligated to due to perfect his interest: the quiet title action merely confirms that title to land has passed to the adverse possessor.

Before walking away from an adverse possession claim to public land, it is important to identify the date the possession started and the date the public acquired title. Is there a chance that the possession ripened into ownership before the transfer to the public entity?

]]>http://rocknelaw.com/adverse-possession-and-public-property/feed/0Inverse condemnation—what’s that?http://rocknelaw.com/inverse-condemnation-whats-that/
http://rocknelaw.com/inverse-condemnation-whats-that/#commentsTue, 16 Oct 2012 16:33:21 +0000http://rocknelaw.com/?p=422Governments (federal, state and local) pass laws and regulations that impact the use of private property. Sometimes those government regulations are so restrictive that a private property owner has a right to compensation for the “taking” of his or her property.

Recently, a landowner with property adjacent to the state penitentiary in Walla Walla, claimed that the state’s operation of an on-site firing range made their property unmarketable. They sought $3.7 million in compensation.

The Court set out the elements of inverse condemnation. They are: (1) a taking, (2) of private property; (3) for public use; (4) without just compensation; (5) by a governmental entity without a formal eminent domain proceeding.

Surely the operation of a live firing range would impact a neighboring landowner’s property?

Well, while the court expressed that that might indeed be true, in this case the landowner’s claim was denied.

You see, the live firing range had been in operation since 1886. The landowner, in other words, had purchased the land while the penitentiary and firing range were already in existence. The landowner’s gripe was most likely triggered when the property was rezoned from agricultural to residential. Realizing that they would not benefit from this rezone because of the presence of the firing range/penitentiary, they sought compensation.

There are hints in the case that the landowner might have had a claim had the intensity of the government’s use of the firing range had increased during their ownership, but that was not established.

Disputes about insurance coverage arise all the time. After all, someone will need to pay for the repair after an event that causes significant damage. Often, we look to insurance companies to pay. They often don’t want to.

Recently, the Court of Appeals, considered whether a commercial tenant is an “implied co-insured” under its landlord’s fire insurance policy. The case is Community Ass’n Underwriters of America Inc, v. Kalles, 164 Wn.App. 30 (2011).

The Harbour Commons condominium owners’ association had purchased a fire insurance policy. The Elkins owned a unit in the condominium which they leased to the Kalles. A fire partially destroyed the unit.

The Insurance Company paid to repair the damage and then sued the Kalles. The Insurance Company claimed that the Kalles had negligently used a space heater which caused the fire.

Kalles moved for summary judgment and asserted that they were “implied co-insureds” under the policy and that Washington law prohibits an insurer from suing its insured on a subrogation claim. The Court agreed with the Kalles and specifically held that, absent a clearly expressed agreement to the contrary, the law presumes a tenant to be a co-insured on the landlord’s fire insurance policy.

The tenant is an “implied” insured because they are not specifically named in the policy.

Does this case excuse a tenant from obtaining their own insurance? Absolutely not. There is nothing in this case that suggests that a landlord’s insurance policy would (or should) cover a tenant’s personal property.

]]>http://rocknelaw.com/tenant-co-insured-washington-state/feed/0What is mediation and why do it?http://rocknelaw.com/mediation/
http://rocknelaw.com/mediation/#commentsThu, 12 Apr 2012 15:29:35 +0000http://rocknelaw.com/?p=305Mediators are trained (usually) professionals that assist parties in solving their dispute. A mediation is usually held in an office with the parties in separate rooms. (Although in facilitative mediation the parties would be in the same room with the mediator). The mediator goes back and forth between the rooms working with the parties to help them define their issues and, hopefully, come to a resolution. The goal is to have a written agreement spelling out the terms of the agreement and any next steps.

Why mediate?

Mediation is voluntary and can often encompass more issues than those that are involved in the specific dispute. Creative mediators will encourage the parties to think “outside the box.” It is even possible that a relationship can be repaired by finding common ground.

Mediation (or some other form of dispute resolution) is required in most civil lawsuits in King County. It should be considered in all cases.

If you have questions about mediation, if you are looking for an attorney to help you or represent you at a mediation or if you are looking for a mediator, I look forward to your calls.

]]>http://rocknelaw.com/mediation/feed/0Time for your depositionhttp://rocknelaw.com/time-for-your-deposition/
http://rocknelaw.com/time-for-your-deposition/#commentsMon, 09 Apr 2012 21:43:07 +0000http://rocknelaw.com/?p=289Most lawsuits settle. But, there may be a time when the opposing attorney will have you in the hot seat answering questions under oath.

Attorneys have the right to require parties and witnesses to answer questions during the discovery process. It can be a nerve wracking time. Most lawsuits settle because of what happens during the depositions.

The person who is deposed is called the deponent. At your deposition, you are able to have your attorney present. Normally, the other lawyer is also present as is the opposing party. A court reporter will take notes and make sure that the deposition is properly recorded. The deposition can be recorded by tape, typed up with a special transcriber machine, and/or placed on videotape. You will be placed under oath and the attorney for the other side can ask you questions about your case. Your attorney will be able to object to the questions asked, if appropriate. After the deposition is completed, either side can ask that it be typed up (transcribed.) Lawyers can use the transcript from the deposition at trial or in support of motions filed in your case.

Preparing for your deposition

It is important that you are prepared for your deposition. An unprepared person may provide responses which are inconsistent with those previously given on other occasions, and may allow the other attorney to argue that you were not being truthful at your deposition or at trial.

Discuss your concerns with your lawyer before the deposition so that your questions are answered. It is important to:

Review all other statements that you have made in the past about your case, especially affidavits and other documents which have been filed in court.

Review your notes, logs, calendars and other paperwork so that you can easily recall the important details such as dates, times and events which previously occurred.

Discuss subjects which are sensitive that you may not wish to disclose so that both you and your attorney are aware of these matters. Attorneys who learn things for the first time at a deposition may have more difficulty protecting your interests.

Attending your deposition

The most important thing you can do at your deposition is to tell the truth. You are initially placed under oath and you have sworn to tell the “truth, the whole truth and nothing but the truth.” Many cases turn on the issue of credibility. If a lawyer can prove that your answers are untruthful, the judge may disbelieve you at trial.

At the deposition, listen to the questions. Don’t answer before the question is completely asked. Think about the question and pause for a moment before answering. This will give you time to insure that your answer is correct. Also, this will give your lawyer time to state an objection, if necessary. Also, this will stop the other lawyer from trying to ask questions and receive responses so fast that you answer quickly without thinking.

Don’t get mad at the other lawyer at the deposition. Lawyers may use the deposition as a way to find your weak points so that they can push your buttons at trial and make you angry. Finally, keep cool at the deposition, and generally keep your answers brief and to the point.

]]>http://rocknelaw.com/time-for-your-deposition/feed/0No attorney’s fees for you!http://rocknelaw.com/no-attorneys-fees-for-you/
http://rocknelaw.com/no-attorneys-fees-for-you/#commentsSat, 10 Mar 2012 23:13:42 +0000http://rocknelaw.com/?p=270Even with the most economical approach to handling a dispute, attorney’s fees and costs can often overwhelm a dispute if the amount in controversy is less than $10,000 or even $20,000. In order to insure that meritorious claims are still economically viable, Washington enacted two rules.

In cases involving less than $50,000 in controversy, the parties must go through mandatory arbitration.

In cases involving less than $10,000 in controversy, a party can make an offer of settlement and, if after arbitration they recover as much or more than offered, they can recover their attorney’s fees and costs.

The Washington Supreme Court, in Williams v. Tilaye (2012) looked at the interplay of the mandatory arbitration rules and the offer of settlement rules and overturned an award of attorney’s fees to the plaintiff because the plaintiffs’ offers to settle came AFTER the mandatory arbitration.

The issue before the Court was this: whether the plaintiffs in a personal injury suit who made an offer of settlement after mandatory arbitration but before trial de novo, and recovered more after trial than they offered in settlement, are entitled to attorney fees under RCW 4.84.250.

In his long, but unanimous opinion, Justice Sanders explained policy rationale and language between the two statutory schemes which should be required reading for any practitioner handling smaller dollar value claims or matters subject to mandatory arbitration. For everyone, litigants and counsel alike, the rule in these cases should be to make those offers to settle early so as to preserve your right to collect an award of attorney’s fees.

In his case, the plaintiffs were each received a judgment. One judgment was for $20,512. The other received a judgment for $7,482.

The trial court had awarded attorney’s fees of $49,847.50 and $25,722.00. The failure to make a timely offer meant that these awards were overturned.

If you have a claim or are defending against a claim where the damages sought are less than $10,000 it is important to have discussion with your attorney about the strategic and tactical reasons for making early offers to settle.